Property law reports

TOWN AND COUNTRY PLANNING: ENVIRONMENTAL IMPACT ASSESSMENT

Outline planning permission - environmental information - whether sufficient environmental information provided for development where matters of siting, design and external appearance reserved - whether decision of planning authority vitiated by failure to state that environmental information was considered - regulation 4(2) of and schedule 3 to Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 - claim dismissed

R (on the application of Burkett) v Hammersmith and Fulham London Borough Council: QBD: Administrative Court (Mr Justice Newman): 15 May 2003

The interested party obtained outline planning permission in connection with a large mixed-use development on a 32-acre site in Fulham, London.

Matters of design, external appearance and landscaping were reserved for later determination.

The claimant, a local resident, brought judicial review proceedings, challenging the grant of permission on various grounds relating to the provision of environmental information under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.

She contended that: the planning application had not contained all the information required by schedule 3 to the regulations because design, landscaping and external appearance were reserved for later determination, and the environmental statement attached to the application had not described the development for which permission was granted; important matters were not assessed in the statement, such as traffic, which was a reserved matter, and contamination from the site; and the local planning authority had failed specifically to state in its decision that it had taken the environmental information into consideration, contrary to the requirements of regulation 4(2).

Robert McCracken and Saira Kabir Sheikh (instructed by Richard Buxton, Cambridge) for the claimant; Timothy Straker QC and Andrew Tabachnik (instructed by the Treasury Solicitor) for the defendant; Robin Purchas QC and Joanna Clayton (instructed by Masons) for the interested party.

Held: The claim was dismissed.

For a planning authority to comply with its obligations under regulation 4(2), where outline planning consent was sought, it had to have, at the outline stage, sufficient details of the proposed development, its environmental impact and any proposed mitigation: (Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262) applied.

It was for the local planning authority to judge the adequacy of the information provided in the statement, and to determine whether it had full and sufficient knowledge of the environmental factors to enable it to assess environmental consequences, although that decision would be reviewable on Wednesbury grounds: R v Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74; R v Rochdale Metropolitan Borough Council, ex parte Milne (No 2) [2001] JPL 470; and R v Cornwall County Council, ex parte Hardy [2001] JPL 786 considered.

The judgment was one of fact and degree in each case.

In the present case, the claimant's challenge hardly advanced beyond a contention that design, external appearance and landscaping could never be reserved.

That was not so.

Reservation of such matters could prevent an environmental assessment being made.

However, in the instant case, the planning authority had been entitled to conclude that sufficient information had been provided to enable it to make an assessment.

A failure to comply with the requirements of regulation 4 went to the validity of a decision, as it raised an issue as to whether the requirements of the law had been met.

However, where it was plain that the substantive purpose of the provisions were met, as in the present case, the court had to consider whether the failure to follow the procedural aspect of the requirement should continue to affect the validity of the decision.

The court should be cautious in the degree of indulgence it extended to any failure to comply with a stipulated requirement, but in the present case, the failure to make the statement was an error and was not to be interpreted as an indication that the environmental information had not been taken into account.

The requirements of regulation 4(2) had been substantially complied with and there was no prejudice to any interested party.

Moreover, the claimant had only taken the point at the last minute.

LISTED BUILDINGS: ENFORCEMENT

Respondent purchasing listed building and carrying out unauthorised works - unauthorised works also carried out by previous owners - whether section 38 of Planning (Listed Buildings and Conservation Areas) Act 1990 giving local authority power to order respondent to rectify all contraventions since date of listing

Braun v First Secretary of State and another: CA (Lords Justice Simon Brown, Laws and Longmore): 20 May 2003

In 2000, the respondent purchased a building that had been listed in 1970.

Previous owners had carried out various alterations to the building without the requisite planning permission.

The respondent carried out further repairs and alterations to the building and applied for retrospective planning permission.

The local planning authority failed to decide that application and served a listed building enforcement notice on the respondent.

The notice set out several steps that the respondent was required to carry out.

The respondent successfully appealed against the enforcement notice and the appellant secretary of state appealed that decision.

Two matters arose: could the local planning authority enforce against an occupier in respect of not only his own works but of all contravening works back to the date of listing? And did the authority clearly specify its intentions to do so in the enforcement notice?

David Forsdick (instructed by the Treasury Solicitor) for the appellant; the respondent in person.

Held: The appeal was dismissed.

Although an owner could not be prosecuted under section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 for unauthorised contravening work carried out by his predecessors in title, section 38 did give the local authority the power to issue an enforcement notice to rectify all contraventions back to the date of listing.

However, where such a notice was intended to reverse all contravening works back to the date of listing, it had to make that intention abundantly plain, so as to comply with the requirement in section 38(2) that the notice 'specify the alleged contravention'.

It was clear that the respondent had believed that the council had intended to enforce only in respect of the works that he had himself carried out, and the appellant had done nothing to dispel this misapprehension.

The wording of the enforcement notice was ambiguous and did not comply with section 38(2) of the 1990 Act.